You Have the Right to . . . Forget About Having Any Rights

If you're from Minnesota, and haven't been hiding under a rock, you've no doubt heard about the situation near the Roseville Mall that involved one aggressive police officer and Lynx star Seimone Augustus. But to recap:

Augustus was stopped by police for violating a crucial law that penalizes having an air freshener hang from your rearview mirror (interestingly, this law specifically does not apply to any law enforcement vehicle). She was then questioned about recent thefts at the Roseville Mall (she was not a suspect) and about why she was driving a vehicle with Louisiana license plates (which is not a crime).

I'm not going to address the topic of whether or not Augustus was racially profiled, and instead want to point out the broader problem: the fact that she was stopped at all.

It's gotten to the point in America where hanging an air freshener becomes a criminal act, or where merely having bloodshot, watery eyes is enough in and of itself for the police to straight up arrest you for DWI. Over the previous decades our legislature and our courts have consistently made it 1) easier for the police to detain citizens for the most frivolous reasons, and 2) upheld the actions of the police when they don't even pretend to be investigating those frivolous violations.

Augustus was stopped by an armed officer with the authority to arrest her and throw her in jail for 48 hours - because she hung an air freshener from her rearview mirror. She was then questioned about a crime she knew nothing about, a shoplifting incident at the mall that was within the same rough area as her vehicle. And, questioning aside, what's really scary is that had she recently been crying (perhaps still overjoyed at whooping the Sparks), she could have been arrested, right there, for having bloodshot eyes (and therefore, according to our courts, probably impaired by drugs or alcohol). Or, even worse, she could have acted slightly more annoyed than she did, and the officer could have found easy reasons to arrest her for obstructing legal process . . . all stemming from her using an air freshener in her car. The simple fact is that our peace officers are entrusted with enormous power - and yet, with that power in hand, neither our legislature nor our courts seem interested in doing anything other than providing law enforcement more and more leeway in exercising that power.

It's a constant battle for every good defense attorney, this push towards eliminating even the sense that we have the right to be free from police intrusion. I regularly receive calls from potential, law abiding clients who complain about being stopped, harassed, or detained by law enforcement, and who are looking for my help. But, because those people were not committing any crimes, and were finally released (sometimes after a stay in jail) all I can do is shrug my shoulders, try and sympathize, and tell them there is nothing I can do - that's the unbridled power of our modern police force.

But when it comes to people who were stopped on a whim, and who are eventually charged with a crime (like DWI), I do get the opportunity to push back against the ever increasing power of our peace officers. A fight that's not just for the sake of my client, but for all of those people who called me and had no recourse against the police. A fight to, if not reverse the trend of ever more intrusive police practices, at least slow it down a notch or two. Because every time a new court decision permits a new form of whimsical traffic stop, a new line is drawn in the sand, a little further than the last one - and we're all a little less free.

Maybe the inevitable day will come when police can stop and question any person, for any reason, at any time. If it does, it won't be in one fell swoop; it'll be in bits and pieces, one chip at a time, until the people themselves don't even remember what it was like to leave the house and not wonder if the police are going to make an appearance and interrupt their day.

But if that day comes, despite our best efforts, at least we will all be able to be rest assured that air freshener related fatalities will have fallen 100%.